Michael A. Wilkins
ATTORNEY FOR APPELLEE
Kay A. Beehler
ZELDA R. MILAM
Michael A. Wilkins
ATTORNEY FOR APPELLEE
Kay A. Beehler
STATE OF INDIANA, ) Supreme Court
) Cause No. 49S05-9802-CR-104
) Court of Appeals
v. ) Cause No. 49A05-9702-CR-75
ZELDA R. MILAM, )
decided today. In Cline, we concluded that the press had a range of legitimate interests,
irrespective of constitutional considerations, that could be asserted to deny discovery under
the Indiana Rules of Trial Procedure, but held that the defendant had made a sufficient
showing to discover a videotaped interview she gave to the media while in police custody.
We hold that the request in this case fails entirely due to non-compliance with the Trial
Rules' requirement of reasonable particularity and materiality. We grant transfer and reverse
the trial court.
On January 6, 1997, Zelda R. Milam was charged with the murder of her husband, Billie Milam. On January 7, Milam's court-appointed attorney requested an order from the trial court directing several television news stations, including WTHR-TV ("WTHR"), to produce "all news footage, aired and [un]aired, edited and unedited, regarding the death of Billie Milam, W/M, on January 1, 1997, and regarding the questioning, apprehension, arrest and arraignment of Zelda Ruby 'Kay' Milam or any other individuals who may have knowledge of this matter." The trial court granted the motion the same day, apparently before WTHR had an opportunity to respond, and ordered production of the requested materials.See footnote 1 On January 8, WTHR filed a motion to reconsider in which it offered to produce any relevant material that had been broadcast. However, as in Cline, WTHR contended that a constitutional "reporter's privilege" precluded compulsory disclosure of any unaired
portions or "outtakes." In reply, Milam suggested in camera review to determine whether
any of the outtakes contained "relevant and/or exculpatory information." The trial court
ordered in camera review but granted WTHR's request for leave to appeal the order.
Holding that the First Amendment to the United States Constitution does not permit reporters
to withhold information related to a crime, the Court of Appeals affirmed. WTHR-TV v.
State, 685 N.E.2d 1091 (Ind. Ct. App. 1997).See footnote
As in Cline, the parties here urge us to reach a constitutional issue as matter of first not last resort. Before reaching any claim of constitutional privilege, any challenged discovery request by a criminal defendant must be evaluated by balancing a number of considerations, including the importance of the item, the difficulty of surrendering it, its availability from other sources, and the degree of invasion of other legitimate interests. Cf. Ind. Trial Rules 26 & 34. The discovery demand in this case is almost word for word the same as that largely rejected in Cline due to non-compliance with the Trial Rules, and it meets the same fate. Cline made clear that "something more precise than 'give me everything related to the case' must be shown." Cline, __ N.E.2d at __, slip op. at 12. Milam has not explained what WTHR has or may have that is relevant to her defense, nor how anything in WTHR's possession -- whatever it is -- might help her prepare for trial, or
is not otherwise available to the defense. Although a showing of materiality before
disclosure is not required where the relevance of the item is self-evident, or the precise
nature of the information is unknown, the defendant still must offer a theory of "potential
materiality" to the best of her ability. Id. at __, slip op. at 10 (citing Dillard v. State, 257 Ind.
282, 292, 274 N.E.2d 387, 392 (1971)). This separates a discovery demand for possibly
relevant materials whose contents are unknown from a mere fishing expedition.
Milam makes no effort to show potential materiality. She has pleaded no facts that would suggest or support the conclusion that WTHR has or may have any information related to her defense and not available to her. In this respect, this case differs markedly from Cline, where it was undisputed that one or more media organizations had interviewed the defendant outside the presence of her lawyer after charges had been filed. We held that Cline was entitled to a copy of the full interview, including unaired portions, because of its possible use either by her or against her at trial. Here Milam does not show any particular item of information to be relevant to her defense. The Trial Rules presumptively entitle Milam to discover any evidence from any party or non-party that assists the preparation of her defense. However, discovery rights do not entitle a criminal defendant to commandeer the efforts of third parties as a substitute for independent defense investigation. Nor do the Trial Rules allow the defendant to rummage through the files of third parties, particularly the press, for information whose materiality is only a matter of pure supposition. Accordingly, Milam's discovery request fails under the Trial Rules due to lack of particularity and any
showing of possible materiality.See footnote
Transfer is granted. The trial court's order for in camera review is vacated. This cause is remanded for further proceedings consistent with this opinion and the guidelines for discovery in criminal cases set forth today in WTHR-TV v. Cline, __ N.E.2d __ (Ind. Feb. 23, 1998) (49S00-9709-CR-484).
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
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